What If I Was With Someone Else At The Time Of The Theft? If I Didn’t Actually Take The Items, Can My Case Be Dismissed?
Tyler started our consultation with a great first question – if you are not the person who actually stole the items associated with the theft, can your case be dismissed? Possibly. Tyler was referring to the Law of Parties.
Under Texas law, the Law of Parties states that you may be still be criminally responsible for the theft, if you aided, assisted, solicited, encouraged, directed, or attempted to aid another person to commit the offense. In other words, if you did anything at all in furtherance of the theft, the law of parties states you are criminally responsible for theft.
However, I reminded Tyler that the State of Texas must prove the Law of Parties beyond a reasonable doubt. Merely being present at the scene of a crime does not make you criminally responsible. It is possible to be at the wrong place at the wrong time and the police assume you were a part of the theft taking place. Tyler then wanted to know
How Is Theft Proven? What Does The Government Have To Show?
To prove theft or shoplifting, the State of Texas must prove beyond a reasonable doubt that Tyler intentionally or knowingly permanently deprived the owner of the property without their consent. In Tyler’s situation, he was alleged to have been shoplifting at a local store. After hearing Tyler’s story, I thought it was important for him to understand some specific points about first-time shoplifting charges.
It is very important that a Fort Worth theft lawyer break down the specific facts of a shoplifting charge because if the store Tyler was in claimed he stole items but, instead, he accidentally failed to scan an item but scanned everything else, the State of Texas will have a difficult time proving criminal intent for the crime of Theft.
Another scenario that happens with shoplifting cases is when you have not yet passed all points of sale because you were looking at something else. For instance, this happens very frequently at Walmart. Walmart will tend to arrest people walking from the main shopping area into the Garden center area claiming they were attempting to leave the store without paying for the items. In this situation, if you have not passed all points of sale, the State of Texas will have a difficult time proving the criminal intent element of theft.
I wanted Tyler to understand that because this was his very first arrest in his young life, it was imperative that he not take a plea deal. We must work together to negotiate a dismissal of the charge because the ramifications are too serious if he was convicted. This led to Tyler’s next question,
Is There a Difference in Defending a Theft Charge and a Shoplifting Charge?
I wanted Tyler to understand that under Texas law, there was no difference between theft and shoplifting. They are two different terms explaining the same thing under the law. Even if the allegation does not involve stealing from a retailer, the same elements of theft must be proven beyond a reasonable doubt by the State of Texas.
One difference in theft and shoplifting is the fact scenario that is being prosecuted. For instance, with a theft charge, the Prosecutor may try to claim a bad business deal can constitute theft. If Company A enters into a construction contract with Company B and after they sign the contract one party pays a down payment and the other party starts construction but one party gets upset at the other because they didn’t complete the contract as expected, it is common for the upset party to claim theft.
The problem with that claim is that in order to prove theft in this situation, the State of Texas will have to prove beyond a reasonable doubt that the offending party had specific criminal intent to defraud the other party at the time of the contract. That is difficult to show in most cases.
Finally, theft charges can sometimes arise where businesses claim to be victimized by consumers. For instance, companies like Rent-A-Center and other rent-to-own businesses will sometimes claim to be a victim because they rented out furniture or items at 28% interest and when the person can no longer pay because of difficult life circumstances, they will call the police and seek to have the individual arrested for theft. This is a gross abuse of the penal code and should be fought by a Fort Worth theft lawyer.
In summary, Tyler needed to understand that he must NOT take a plea deal. He needed a dismissal to be negotiated so that he could have the charge and arrest removed from his criminal record. This led to Tyler’s last question
If The State Can Prove Everything, Is There Still A Way I Can Get This Shoplifting Case Dismissed and Expunged From My Record?
Yes! Even if the police can prove every element of theft beyond a reasonable doubt, there is a very chance we would be able to get Tyler’s case dismissed. This could be achieved by securing a conditional dismissal or a dismissal because of a Tarrant County Diversion Program
Tyler was interested in the idea of a dismissal and wanted to know more about a conditional dismissal for theft. A conditional dismissal is a way to resolve a case that works much like a contract. The Prosecutor agrees to dismiss your case in exchange for you completing terms and conditions in advance. Your Fort Worth theft lawyer must negotiate directly with the prosecutor and persuade them to dismiss the case in exchange for one or many of these possible conditions: community service hours, completion of a theft class, proof of employment, etc.
Tyler also wanted more details about the Diversion Program Options available to him on theft cases. Specifically, in Tarrant County, Texas, there is one specific Diversion program to consider with theft cases. This program is important for Tyler to consider because completion of a Diversion Program allows for an Immediate Eligibility for Expunction!
Deferred Prosecution Program (DPP) in Tarrant County, Texas – the Deferred Prosecution Program is a diversion program that allows certain theft offenses for admission. The program is designed specifically for first-time offenders with no prior criminal history. There is virtually no supervision involved in the program. It is designed to be a second chance to first-time offenders.
Applicants must not be older than 24 years of age, must not have had a previous juvenile adjudication or adult class b misdemeanor or above offense and must be able to pass a drug test. There are two tracks available under the Deferred Prosecution Program – Track A is the traditional DPP track and would apply to all theft and theft-related charges. Track A consists of an application, background investigation, orientation and passing of a drug test.
There is a strict 90-day deadline from the filing of the case that must be met to be considered for admission to the program.
A short summary of the DPP Program requirements include:
- Orientation – requires a parent or accountability partner to be present for the 2-hour orientation where paperwork is signed and finalized to begin the program
- Length of Program
- Misdemeanor Drug Crimes – 4 months
- Felony Drug Crimes – 8 months
- Drug Test
Eligible Drug Offense for Consideration of the Deferred Prosecution Program (DPP)
- Theft and theft of service, where the value is less than $30,000 (Misdemeanor – State Jail Felony)
- Unauthorized Use of a Vehicle (State Jail Felony)
- Burglary of a Building (excludes habitation)
- Burglary of a Coin Operated Machine
- Credit Card and Debit Card Abuse (State Jail Felony)
- Forgery (misdemeanor)
- Possession, manufacture, distribution of instrument to commit retail theft (misdemeanor)
I almost forgot one last program that was available to Tyler because he had served in the military for a short time. I wanted him to know about the Tarrant County Veteran’s Court Diversion Program.
Veteran’s Court Diversion Program in Tarrant County, Texas
The Tarrant county Veteran’s Court Diversion Program is a diversion program designed exclusively for veterans of the United States military. Additionally, there must be a clinical diagnosis of a brain injury, mental illness, or mental disorder, including Post-Traumatic Stress Disorder that resulted from serving in a combat zone or similar hazardous duty area. The program requires a program fee of up to $500.00 and may include additional expenses for drug urinalysis, evaluations, inpatient/outpatient counseling and treatment.
The Veteran’s Court Program directly supervises all participants by requiring bi-monthly compliance hearings and making sure each participant is on track for progress through the program. The program length can range from 6 – 24 months. Length is determined by each participant’s needs and or compliance with the program.
To enter the program, you must first apply for a referral into the program. After the referral is received, a face-to-face interview is scheduled for consideration, followed by a comprehensive assessment for final approval. Finally, there must be a plea before the court with jurisdiction to begin the program.
What is the benefit of this program? The benefit is that the case is dismissed, and you can get this charge expunged from your criminal record.
What is the risk of this program? If you do not complete the terms and requirements of the Veteran’s Court Diversion Program, you will have already entered a plea of guilty before the court and will no longer have the right to a jury trial. The judge would be permitted to sentence you anywhere within the range
Tyler was encouraged with the information he had received and excited that he had a clear plan of action to protect his freedom and clear his criminal record.
How did this true story end? Although Tyler had several options available to him to get his theft case dismissed, ultimately, we were able to convince the prosecutor that he was merely present at the scene at the time the theft took place and that he was simply in the wrong place at the wrong time and did nothing wrong. As a result of our efforts, he was exonerated and eligible to have his arrest and charge expunged from his record.
Tyler’s story is similar to many others who have been arrested for Theft in Texas. Unfortunately, many people are not provided the information they need to make good decisions after their arrest. We hope this information has clarified how the criminal justice system works, as it relates to Theft cases.